United States Department of the Navy, Commander, Navy Region Mid-Atlantic, Program Director, Fleet and Family Readiness, Norfolk, Virginia (Agency/Petitioner) and National Association of Independent Labor (Exclusive Representative/Petitioner) and American Federation of Government Employees, Local 22, AFL-CIO (Exclusive Representative)

64 FLRA No. 143

FEDERAL
LABOR RELATIONS AUTHORITY

WASHINGTON,
D.C.

_____

UNITED
STATES DEPARTMENT OF THE NAVY

COMMANDER,
NAVY REGION MID-ATLANTIC

PROGRAM
DIRECTOR, FLEET AND FAMILY READINESS

NORFOLK,
VIRGINIA

(Activity/Petitioner)

and

NATIONAL
ASSOCIATION OF INDEPENDENT LABOR

(Exclusive
Representative/Petitioner)

and

AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL
22, AFL-CIO

(Exclusive
Representative)

WA-RP-09-0071

WA-RP-09-0078

_____

ORDER
DENYING APPLICATION FOR REVIEW

May
14, 2010

_____

Before the
Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and
Ernest DuBester, Members

I. Statement
of the Case

This case is before the Authority
on an application for review filed by the National Association of Independent
Labor (NAIL) under § 2422.31 of the Authority’s Regulations.[1]
The Activity filed an opposition to the application for review.

As a result of a reorganization, 31
Nonappropriated Fund (NAF) employees were organizationally transferred from an
Army activity in Virginia Beach, Virginia to a Navy activity in Norfolk,
Virginia. Specifically, the NAF employees were transferred from the U.S. Army
Garrison Command, Fort Story (Fort Story) to the Commander, Navy Region
Mid-Atlantic, Program Director, Fleet and Family Readiness, in Norfolk,
Virginia (the Activity).

NAIL and the Activity filed
petitions to clarify the bargaining unit status of the affected employees. NAIL sought a ruling that the transferred employees
constitute a separate appropriate unit for which the Activity is the successor
employer. The Activity in its cross-petition sought a determination that the
transferred employees had accreted into an existing unit at the Activity
represented by the American Federation of Government Employees, Local 22
(AFGE).

The Regional Director (RD) found
that the bargaining unit sought by NAIL was not appropriate and concluded that “a
finding of successorship cannot be made.” RD’s Decision at 7. The RD then
concluded that the 31 transferred employees accreted to the existing unit of
NAF employees represented by AFGE and amended AFGE’s certification to include
the 31 accreted employees.[2]

For the reasons that follow, we
deny the application for review.

II. Background and RD’s Decision

A. Background

The Activity is responsible for the
operation of all the Morale, Welfare, and Recreation (MWR) programs in Navy
installations and facilities along the eastern seaboard, except for the
Washington, D.C. area. RD’s Decision at 2. As part of the 2005 Department of
Defense (DOD) Base Realignment and Closure (BRAC) process, DOD entities in
close proximity to each other were ordered to consolidate base operating
support functions as a way to save resources. Id. The Department of
the Army agreed to organizationally transfer 31 NAF employees at Fort Story and
their MWR functions to the Activity. Id. at 4. These transferred
employees have been administratively and organizationally integrated into the
Activity. Id.

NAIL is the exclusive
representative of all NAF employees at Fort Story and consequently, the
transferred employees at issue in this proceeding were part of NAIL’s
bargaining unit. Id. at 3. AFGE represents all NAF employees in the
Activity, a unit of approximately 840 employees. Id. at 3.

NAIL filed a representation
petition seeking to clarify the bargaining unit status of the NAF employees
transferred to the Activity and seeking a determination that the Activity is
the successor employer for these employees. The Activity filed a
cross-petition to accrete the transferred employees into the bargaining unit
represented by AFGE. Id. at 1-2.

B. RD’s Decision

In considering NAIL’s petition and
the Activity’s cross-petition, the RD applied the legal framework set forth in United
States Department of the Navy, Fleet and Industrial Supply Center, Norfolk,
Virginia, 52 FLRA 950, 958-59 (1997) (FISC). The Authority
employs this framework to resolve competing claims of successorship and
accretion in cases arising out of a reorganization where employees are
transferred to a pre-existing or newly established organization. RD’s Decision
at 5. Applying FISC, the RD first considered whether the transferred
employees constitute a separate appropriate unit. Id. at 6.

In determining whether the NAIL unit constitutes a
separate appropriate unit, the RD considered whether the unit would: (1)
ensure a clear and identifiable community of interest among the employees in
the unit; (2) promote effective dealings with the Activity; and (3) promote the
efficiency of the Activity’s operations. See id. (citing U.S.
Dep’t of the Army, Military Traffic Mgmt. Command, Alexandria, Va., 60 FLRA
391, 393-94 (2004) (Military Traffic Mgmt. Command); U.S. Dep’t of
the Air Force, Lackland Air Force Base, San Antonio, Tex., 59 FLRA 739, 741
(2004)). The RD further noted that all three criteria must be satisfied in
order for a proposed unit to be appropriate. RD’s Decision at 6 (citing FISC,
52 FLRA at 961).

In assessing the community of interest criterion, the RD
found that the record did not demonstrate that the transferred employees shared
a clear and identifiable community of interest separate and distinct from the
NAF employees of the Activity represented by AFGE. RD’s Decision at 7. The RD
found that the transferred employees did not have an employment relationship or
work situation different from that of the NAF employees in the AFGE bargaining
unit. Id. Moreover, the RD found that the transferred employees and
the employees in the AFGE bargaining unit were all part of the same organizational
component, supported the same mission, and were subject to the same chain of
command. Id. The RD also found that the transferred employees have
similar or related duties, job titles, and work assignments, and are subject to
the same general working conditions as the employees in the AFGE bargaining
unit. Finally, the RD found that the transferred employees and the employees
in the AFGE bargaining unit are governed by the same personnel and labor
relations policies that are centrally established and administered by the same
human resources office. Id.

The RD concluded that all of the above factors
indicated that the transferred employees do not share an identifiable community
of interest separate and distinct from the employees in the Activity’s pre-existing
bargaining unit represented by AFGE. Id. (citing, among others, U
S. Dep’t of the Navy, Fleet Readiness Ctr. S.W., San Diego, Cal., 63 FLRA 245, 250 (2009) (Fleet Readiness) and FISC, 52 FLRA at 964-65).

With respect to the second appropriate unit
criterion, the RD found that a stand-alone unit limited to 31 employees would
not promote effective dealings. RD’s Decision at 7. The RD found that all
personnel and labor relations matters including the negotiation of collective
bargaining agreements related to NAF were administered centrally from the
Activity’s NAF human resources office. Id. Under such circumstances,
the RD found that having to negotiate and administer a separate collective
bargaining agreement for the transferred employees, who share a community of
interest with the NAF employees in the AFGE bargaining unit, would not promote
effective dealings. Id.

Finally, with regard to the third appropriate unit
criterion, the RD found that the unit proposed by NAIL would not promote the
efficiency of the Activity’s operations. Id. The RD found that the
establishment of a small stand-alone unit of employees would result in an
unwarranted fragmentation of the Activity’s integrated organizational and
operational structure. Id. (citing FISC, 52 FLRA at 966-67).

Accordingly, the RD found that the
bargaining unit sought by NAIL was not appropriate and concluded that “a
finding of successorship cannot be made.” RD’s Decision at 7. The RD then
concluded that the 31 transferred employees accreted to the existing unit of
NAF employees represented by AFGE, and he amended AFGE’s certification to
include the 31 accreted employees. Id. at 8.

III. Positions of the Parties

A. Application
for Review

NAIL asserts that “established law
or policy warrants reconsideration.” Application
for Review at 1.NAIL argues that the RD’s
decision that the transferred employees were accreted to the existing unit
represented by AFGE circumvents the transferred employees’ right to select
their own representative. Id. at 3. NAIL asserts that in resolving
competing claims of successorship and accretion in cases arising out of a
reorganization where employees are transferred to a pre-existing or newly
established organization, the Authority should first consider §§ 7101 and 7102
of the Statute, which permit employees to choose their representative. Id.
at 2, 3-5.

NAIL also claims that, in
determining the appropriateness of the unit, the RD failed to apply established
law. NAIL cites §§ 7101, 7102 and 7112(a)[3]
of the Statute. According to NAIL, the transferred employees constitute a
separate appropriate unit for which the Activity is a successor employer. NAIL
claims that the transferred employees have no interaction with other NAF
employees at the Activity, nor has there ever been an interchange of employees
between the organizations. Id. at 5-6. NAIL also asserts that
decisions concerning conditions of employment have been historically made at
the local level, and that the transferred employees have better benefits under
NAIL’s collective bargaining agreement than under AFGE’s agreement. Id.
at 6. NAIL asserts that the competitive area for merit promotions and RIFs
would be impossible to determine, and finally, that the proposed unit is
geographically isolated from the gaining organization. Id.

With respect to effective dealings,
NAIL asserts that it does not promote effective dealings to have the office
responsible for administering personnel and labor relations policies located in
Norfolk, Virginia while the employees are physically located at Fort Story in
Virginia Beach. Id. at 8. NAIL also claims that NAF employees under
the NAIL agreement enjoy more benefits than NAF employees under AFGE’s
contract. Id.

Finally, regarding the efficiency
of operations, NAIL claims that the record does not support the Activity’s
claim that it is more efficient to have the transferred employees accrete to
AFGE. Id. NAIL asserts that the record does not support the conclusion
that the accretion of the NAIL employees to AFGE would be cost effective or
would lead to more efficient operations. Id. In sum, NAIL asserts that
the transferred employees are an appropriate unit, and that the RD erred when
he concluded otherwise. Id.

B. Opposition

The Activity asserts that NAIL is
basically arguing, without support, that the RD misapplied accretion principles
in rendering his decision. Opp’n at 2.

The Activity asserts that, although
under § 7101 of the Statute employees have the right to choose their labor
organizations, under established accretion principles an election is not always
necessary when a group of employees is added to an existing bargaining unit
based on a change in agency operations or organization. Id. at 2-3.

Regarding the community of interest
criterion, the Activity argues that the transferred employees do not work
side-by-side with other NAF employees who remain at Fort Story. Id. at
3. The Activity further argues that the transferred employees are being
trained under Navy rules, regulations, and local policy. Id. Finally,
the Activity asserts that the transferred employees interact with other Navy
MWR employees at various sites under the Activity’s control, and through
training and job exchanges. Id. at 3-4.

On the subject of effective
dealings, the Activity asserts that having all employees covered by the same
collective bargaining agreement will facilitate effective dealings. Id. at
4. The Activity first notes that the transferred employees are no longer under
the same organizational structure as the other employees at Fort Story. The
Activity asserts that the transferred employees are now under the same chain of
command as the other employees represented by AFGE. Id.

Finally, the Activity argues that a
finding of successorship would not promote efficiency because negotiating and
administering two separate contracts would be costly for the Activity. Id.
at 4-5. The Activity claims that the establishment of a separate unit for a few
transferred employees who share the same community of interest as the employees
represented by AFGE would result in an artificial, unwarranted fragmentation. Id.
at 5.

IV. Analysis and Conclusions

A. Established
law on accretion does not warrant reconsideration.

NAIL argues that “established law
or policy warrants reconsideration.” Application for Review at 1. An
assertion that “established law or policy warrants reconsideration” is an
established ground for challenging an RD’s Decision and Order.
5 C.F.R. § 2422.31(c)(2); U.S. Dep’t of Agric., Office of the Chief Info.
Officer, Info. Tech. Servs., 61 FLRA 879, 883 (2006).

In support, NAIL asserts that in
cases arising out of a reorganization where employees are transferred to a
pre-existing or newly established organization, the Authority should first
consider §§ 7101 and 7102 of the Statute, which permit employees to choose
their representative. NAIL claims that the RD’s decision that the transferred
employees were accreted to the existing units represented by AFGE circumvents
the transferred employees’ right to select their own representative. Application
for Review
at 3.

However, the
Authority previously has rejected the argument that “employees must always be
given an opportunity to vote on which exclusive representative will represent
them.” U.S. Dep’t of the Navy, Human Resources
Serv. Ctr. Nw., Silverdale, Wash., 61
FLRA 408, 412 (2005). For example, under basic accretion principles,
employees who are accreted into an existing unit are included in the unit
without having the opportunity to vote. See, e.g., FISC, 52 FLRA at
963. Similarly, the Authority has held that new employees are automatically
included in an existing unit where their positions fall within the express
terms of a unit certification and their inclusion would not render the unit
inappropriate. See, e.g., Dep’t of the Army, Headquarters, Fort Dix, Fort
Dix, N.J., 53 FLRA 287, 294 (1997).

The Authority’s existing accretion principles adequately
account for the individual rights cited by NAIL. In this connection, the
Authority has held that “[b]ecause accretion precludes employee self-determination,
the accretion doctrine is narrowly applied.” U.S. Dep’t of Veterans
Affairs, Gulf Coast Veterans Health Care Sys., Biloxi, Miss., 64 FLRA 452,
455 (2010) (citation omitted). NAIL does not explain with any specificity why
this established law is incorrect. In these circumstances, there is no need to
reconsider established Authority precedent regarding accretion in order to
acknowledge the individual statutory rights cited by NAIL. Consequently,
NAIL’s application for review as to this matter is
denied.

B. The
RD did not fail to apply established law.

NAIL claims that the Activity is a
successor employer and that the RD failed to apply established law when he
concluded that the transferred employees were not a separate appropriate unit.

1. Established Law

In FISC,
52 FLRA 950, the Authority adopted the following framework for resolving cases
arising from a reorganization where employees are transferred to a pre-existing
or newly established organization (the “gaining organization”) and both
successorship and accretion principles are claimed to apply:

(1) Initially, the Authority will
determine whether, under [§] 7112(a) of the Statute, the transferred
employees are included in, and constitute a majority of, a separate appropriate
unit in the gaining organization. The outcome of this inquiry will govern
whether successorship or accretion principles should next be applied.

(2) If it is determined that the
transferred employees are included in and constitute a majority of a separate
appropriate unit in the gaining organization, [then] the Authority will apply
the remainder of the successorship factors set forth in [Naval Facilities
Eng’g Serv. Ctr., Port Hueneme, Cal., 50 FLRA 363 (1995) (Port
Hueneme)] to the unit determined to be appropriate. The outcome of the Port
Hueneme analysis will determine whether the gaining organization is a
successor for purposes of collective bargaining with the labor organization
that represented the transferred employees at their previous employer.

(3) If it is determined that the
transferred employees are not included in or do not constitute a majority of a
separate appropriate unit in the gaining organization, [then the Authority]
will apply accretion principles. The outcome of this analysis will determine
whether the transferred employees have accreted to a pre-existing unit in the
gaining organization.

The first step in the above
framework “corresponds to the first factor set forth in Port Hueneme,
which requires, inter alia, that ‘the post-transfer unit must be
appropriate[.]’” FISC, 52 FLRA at 959 (quoting Port Hueneme, 50
FLRA at 368). As discussed previously, a unit may be deemed to be appropriate
under § 7112(a) of the Statute only if it will: (1) ensure a clear and
identifiable community of interest among the employees in the unit; (2) promote
effective dealings with the agency involved; and (3) promote efficiency of
the operations of the agency involved. FISC at 959-62. A proposed unit
must meet all three criteria in order to be found appropriate. Military
Traffic Mgmt. Command, 60 FLRA at 394. Determinations as to each of these
criteria are made on a case-by-case basis. Id. The Authority has set
out factors for assessing each criterion, but has not specified the weight of
individual factors or a particular number of factors necessary to establish an
appropriate unit. Id.

2. The RD applied established law.

With regard
to the first appropriate unit criterion -- whether employees share a clear and
identifiable community of interest -- the Authority examines factors such as
geographic proximity, unique conditions of employment, distinct local concerns,
degree of interchange between other organizational components, and functional
or operational separation. See FISC, 52 FLRA at 960-961 (citations
omitted). In addition, the Authority considers factors such as whether the
employees in the proposed unit are a part of the same organizational component
of the agency; support the same mission; are subject to the same chain of
command; have similar or related duties, job titles, and work assignments; are
subject to the same general working conditions; and are governed by the same
personnel office. See id.

NAIL argues that the transferred
employees share an identifiable community of interest that is separate and
distinct from the other NAF employees represented by AFGE. However, considering
the relevant factors, the RD found that the transferred employees were
administratively and organizationally integrated into the Activity. RD’s
Decision
at 4, 7. In this regard, the RD found that the transferred employees do not
have an employment relationship or work situation materially different from the
NAF employees represented by AFGE. Id. at 7. The RD further found that
the transferred employees and the employees represented by AFGE are all part of
the same organizational component. The RD found that the two groups support
the same mission, are subject to the same chain of command, have similar or
related duties, job titles, and work assignments, and are subject to the same
general working conditions. The RD also found that the two groups are governed
by the same personnel and labor relations policies that are centrally
established and administered by the same human resources office. Id.
The RD concluded that the work situation or employment relationship of the
transferred employees and the employees represented by AFGE is essentially the
same. Id.

NAIL’s assertions do not dispute
the above findings, and do not demonstrate that the RD inappropriately applied
the community of interest criterion. In this regard, NAIL has not established
that the transferred employees have duties that are different from the
employees represented by AFGE, report to a different chain of command, support
a different mission, or are subject to working conditions, organizational
components, or job titles that are different from those of the employees
represented by AFGE. See FISC, 52 FLRA at 960-61. Based on the
foregoing, NAIL has not demonstrated that the RD failed to apply established
law in finding that the transferred employees do not share a clear and
identifiable community of interest separate and distinct from other AFGE
employees.[4]

The RD also applied established law
when he considered the effective dealings criterion. To apply this criterion,
the Authority examines factors such as the past collective bargaining
experience of the parties; the locus and scope of authority of the responsible
personnel office administering personnel policies covering employees in the
proposed unit; the limitations, if any, on the negotiation of matters of
critical concern to the employees in the proposed unit; and the level at which
labor relations is set by the agency. Id. at 961.

The RD found that NAIL’s continued
representation of the transferred employees would not promote effective
dealings with the Activity because supervisors at Fort Story no longer have the
authority to establish policies, procedures, or working conditions or to negotiate
over such matters. Rather, all personnel and labor relations matters,
including the negotiation of collective bargaining agreements, are administered
centrally from the Activity’s human resources office. The RD found that effective
dealings are not promoted by a unit that would require the Activity’s human
resources office to negotiate and administer a separate collective bargaining
agreement for the 31 NAF employees who share a community of interest with the
840 employees in the AFGE bargaining unit. In this regard, we note that NAIL’s
claim regarding employee benefits under its contract, in contrast to AFGE’s
contract, has no relevance when determining effective dealings between the
Union and the Activity. Id. Thus, the RD’s findings support his
conclusion that allowing NAIL to represent a separate unit of 31 employees
would not promote effective dealings with the Activity.

Finally, the RD applied established
law when he considered the efficiency of agency operations criterion. This
criterion concerns the benefits to be derived from a unit structure bearing a
rational relationship to the operations and organizational structure of the
agency. Id. The record here does not establish that the unit proposed
by NAIL would promote the efficiency of the Activity’s operations. As found by
the RD, the Activity has a centralized operational and organizational
structure. Therefore, the establishment of a small unit of 31 employees would
result in an artificial, unwarranted fragmentation of the Activity’s
organizational and operational structure, thereby interfering with the
efficiency of the Activity’s operations.

The foregoing demonstrates that the
RD correctly applied established law in determining that the transferred
employees do not constitute a separate appropriate unit under § 7112 of the
Statute. Accordingly, as NAIL has not established that the RD failed to apply
established law, we deny NAIL’s application for review as to this matter as
well. See U.S. Dep’t of the Navy, Fleet Readiness Ctr., Sw., San Diego, Cal.,
63 FLRA 245, 252 (2009).

[2]
The application for review in this case initially contained several procedural
deficiencies. On March 11, 2010, the Authority’s CaseIntake and Publication Office issued an
order directing NAIL to correct all deficiencies by March 25, 2010.
Rather than amending the original application, the Union filed a new complete
application on March 22, 2010. Because the second application was filed with
the Authority within the 60-day time frame prescribed by the Authority’s
Regulations, the Authority accepted the second application as the formal filing
and noted that the Union’s original application would not be considered. 5 C.F.R.
§ 2422.31(a).

[3]
NAIL refers to § 7112(c) in its application; however, its arguments are based
on the application of the criteria for appropriate unit determination set forth
in § 7112(a) of the Statute.

[4]
As set forth in Military Traffic Mgmt. Command, 60 FLRA at 394, all
three criteria under § 7112(a) must be satisfied in order to establish that a
unit remains appropriate after a transfer. Here, as the first criterion is not
met, it is unnecessary to consider whether the proposed unit would promote
effective dealings with the Activity or promote the efficiency of the
Activity’s operations. For purposes of this decision, however, we nonetheless
analyze the other factors, as set forth below.